generally hold it against a plaintiff that they have had the foresight to obtain insurance to protect their family from cat- astrophic expenses when they are remind- ed what it cost to obtain the insurance. For that reason, the second half of the equation of Civil Code section 3333.1 is important to give significant considera- tion to, in the presentation of medical expense evidence. Although the Code allows introduc-
tion of evidence of collateral source, it also allows the Plaintiff to introduce evi- dence of the cost of obtaining insurance, and, arguably, may allow the Plaintiff to introduce evidence of limitations on life- time medical expenses payable under the insurance policy or health care plan. In that regard, the Code states: Where the defendant elects to
introduce such [collateral source pay- ment] evidence, the plaintiff may intro- duce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance bene- fits concerning which the defendant has introduced evidence. (b) No source of collateral benefits introduced pur- suant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant. Thus, for someone who has paid
hundreds of dollars a month for health- care insurance out of his paycheck for years, the plaintiff’s attorney should put on evidence of that cost over a lifetime of employment. At today’s rates, it is not uncommon for a head of household to have paid $5,000 to $7,500 per year for health insurance. Small businessmen who are running their own business can pay much more for their family and them- selves. For 12 to 15 years of health-care insurance, premiums can sometimes equal the medical expense paid by a col- lateral source, and that cost is one with which the Plaintiff earns the sympathy of all the jurors. Economists and insurance brokers, as
well as the plaintiff’s employer are all good witnesses to testify to the impact of substantial health care claims on a small business which has just one employee out
of many with a major medical claim. It has become common knowledge that a single catastrophic illness treatment claim can wipe out whole plans, and can make the plaintiff uninsurable for the balance of his years at any cost. Introduction of that evidence needs to be considered as something which can provide a strong motivation for the jury to return a signifi- cant verdict, even in the face of collateral source payments. The doctrine of collateral source has,
of course, come under a great deal of scrutiny in the recent months, with a number of appellate cases addressing the issue having recently been taken up by the Supreme Court. Indeed, with Howell, King, and Olsen having been taken up, there are many indications that signal a change in the doctrine after years of assault on the admissibility of medical expenses incurred in general liability cases by the insurance industry. While Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 [246 Cal.Rptr. 192], con- tinued to allow the injured tort victim to obtain compensation from the tort victim for medical care even if the costs were covered by the injured person’s insur- ance, Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 [112 Cal.Rptr.2d 861] and Greer v. Buzgheia (2006) 141 Cal.App.4th 1150 [46 Cal.Rptr.3rd 780] prohibited the plaintiff in a tort action from recovering more than the amount of the medical expenses he or she actually paid or incurred, even if the reasonable value of those services might be a greater sum than the amount billed.
Recently, the Second District Court
of Appeal ordered published Cabrera v. E. Rojas Properties, Supra, even as King v. Willmett, Olsen v. Reid, and Howell v. Hamilton Meats, have been taken up, mak- ing them uncitable. Although speculation is substantial that a petition for Supreme Court Review of Cabrera will also be grant- ed, Cabrera, for the moment, remains the most recent published appellate case con- sidering the “collateral source rule,” in which the principal issue on appeal was whether the rule bars the reduction of a plaintiff’s recovery of past medical
expenses from the amount billed by her medical provider to the amount paid by her private medical insurer. The same concerns of the direction of the collateral source rule, generally, are being addressed on appeal in Howell v. Hamilton Meats & Provisions, Inc., King v. Willmett, and Yanez v. Soma Environmental Engineering, which are not expected to be ruled upon until late 2011 or early 2012. Perhaps the only encouraging
thought to be had about all of these cases is that the current Chief Justice of the California Supreme Court is Justice Cantil-Sakauye, the author of King v. Willmett, which refused to allow the trial court to discount the award of past med- ical expenses to the plaintiff to the amount ultimately paid by his private insurer, and instead, held that the proper amount of the past medical expense award was the amount he incurred. In doing so, she acknowledged the princi- ples of the traditional collateral-source rule, which gives us all some hope that the Supreme Court will follow her lead. Even if that continues to be the rule
of law, it is unlikely that the collateral- source rule will ever be instituted in med- ical negligence claims until MICRA is abolished. That fight should never be abandoned, since for all of us, it is appar- ent that MICRA was the bad social experi- ment to which others have looked for examples of ways to abandon the princi- ples we need to maintain for safe con- sumer protection. William H. Newkirk is with the Law
Offices of William Newkirk specializing in medical negligence, professional negligence and personal injury. He is a member of the American Board of Trial Advocates and the Consumer Attorneys Association of Los Angeles Board of Governors (Emeritus). He has received Recognition of Experience Certificates in Medical Negligence and Trial Practice. He is an author and lecturer on medical negligence and personal injury litigation, and is an occa- sional legislative witness in medical negligence issues. He received his B.A. from UCLA in 1970 and his J.D. from Southwestern University in 1974.
JULY 2011 The Advocate Magazine — 23
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